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October 25, 2006

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» Pretty amazing from aTypical Joe: A gay New Yorker living in the rural south.
Geoffrey Stone in the University of Chicago Law School Faculty Blog: Among the many intriguing facets of this decision is that the vote was 4-to-3. The three dissenting justices did not argue that gays and lesbians do not have a... [Read More]

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chinyere

Responding to F, are you trying to suggest that homosexuality is a CHOICE for people?
If so, that is preposterous, and you need to educate yourself before contributing further to this discussion.

Moreover, as a black queer person, I find Professor Stone's analogy completely appropriate.

Both are groups whose identity is unalienable in certain senses (exceptions being the ability to pass as white, or heterosexual -- both rare), and who suffer discrimination based solely on that identity.

What stands to be reckoned with, however, is the issue as to whether the civil rights movement can be likened to the push for gay marriage. Personally, I think comparisons between the two best extends to the issue of same sex domestic partnership and the benefits inherent - i.e. tax concessions, visitation rights, property laws, insurance, etc -- rather than the concept of marriage itself. Or atleast, I concede that arguments could easily and sucessfully be made to that effect.

I for one am happy about the NJ courts decision, but as everyone perhaps should be, i feel worried about the potential for backlash, both within Congress and at the Federal Appeals Courts.

Joan A. Conway

Remember Massachusetts and New Jersey have cities or communities comprised mostly of gays, power centers for gays. The States have a profit motive to include these communities within their cities or collar-communities near big cities with mostly gays. Otherwise local, city, and state taxes would fall heavily upon those who are not gays for the services provided to these gay communities or cities in suspected states, like Massachusetts and New Jersey. There is a compensating benefit arising from this accountability. Let us say where there is a large incident of crime within the gay communities that required extraordinary police effort to solve these problems, the cost or benefit to such services would be born by the people strongly associationed with failure to curb their conduct or behavior in a civil society, and not the others, who would be picking up the cost and not the benefit in a corresponding local, city, and state tax assessed against others unjustly. It also removes the problem of outward intoxication in the thought that certain people marginalized by society can punish the local, city, and state populace with the abuse, cost, and scandal of their retaliation, rebellion, and self-hatred, stemming from being excluded from a great deal that others are entitled to in a capitalistic society, bound by traditional values, customs, and laws. This is simply the Fourteenth Amendment, of the United States Constitution protection of Equal Treatment under the Laws, and Procedural and Substantive Due Process, working for the same species, in spite of being the same-sex!

I live in Boys Town, LakeView, Chicago, Illinois, a liberal party bastion that has many problems of being over-crowded with a demographic diversity, including a lot of dogs, if one included all living things in this discussion, sorry cats! I see street fights about domestic disputes between two men of the same-sex on my street. The men involved do not look like gay men either. You would be surprised. Gays like attention over the fact they have soap opera confrontations too! It appears that the gay group feel they are given short change when it comes to being noticed, a subject of interest, and considered a topic worthy of exploration by the media. In other words their needs are not being fulfilled by the other people in the community. How much of this is true comes about when they, the gays, have to pay for this additional attentional themselves. I am all for accountability, if for nothing else to make aware where there is room of change in conduct or behavior in everyone.

I would be uncomfortable living in a strictly gay community. Thanks to the fact the LakeView area is very diverse, I am able to live in it as well. Then the accountability would fall on all of us to rein in the excesses of our neighbors. Neighbor-to-neighbor is quite difficult although, where the needy also reside! There appears to be an opportunity to transfer the poverty of many others on the fortunes of few. Therefore, our problems are not resolved adequately. Solutions are not found in such an environment, because of the ability to escape liability by the perpetrators of breaching the peace and committing crimes.

LAK

Whaaaaaa?

Cynic

"The tax laws should be altered to provide that heterosexual, married couples who have produced children and who stay married and raise the children well should pay zero federal income taxes.

As it is, we who try to do the right thing pay 15% of our income to the federal government, which uses our money, in part, to prop up non-contributing members of our nation, with their 12 [future criminal] kids--and then we good folks have to struggle to buy food for ourselves while raising children who can contribute something other than violent crime to society. All the while we are told we should feel guilty about having the great fortune to work 60 hours a week for enough to barely pay the mortgage on our smallish houses in mediocre neighborhoods, instead of drinking beer on our front porches all day sans shoes."

Oh what the hell, I am bored today.

YC, I find it difficult to feel bad for you when you *chose* to be married and raise children and now have trouble making ends meet when the government actually allows you to keep a huge chunk of your salary. I'm a single person with no children that I know of (a joke there, for those who actually believe me when I say I'm a woman...) and I pay more than twice the percentage you cite to the government. You're complaining about 15%? YC, I hate to be the one to break it to you, but your money is not helping much of anyone. My money probably pays a government employee's annual salary plus a decent bonus. Yours might buy them a holiday party.

And what's this business with "producing" children? You have something against infertile couples? Personally, I think your position is highly unfair -- a lot of infertile people desperately want to have children. Why should the government punish them for not doing something they are physically unable to do? I think you ought to at least include people who adopt. Although I suppose a couple of scientists could make a test-tube baby... seems to me that counts as "producing" one. Frankly, the kid would probably have a better life with smart, successful parents anyway.

Erasmussimo

Here's an interesting tidbit on the decision: our bigoted correspondent claimed that the New Jersey Supreme Court decision does not reflect the will of the people of New Jersey. I am surprised to report that this is incorrect; a Zogby poll finds that 56% of New Jersey residents favor full marriage rights for gays. Here's the link:

http://www.freedomtomarry.org/document.asp?id=5003

Erasmussimo

Even more irony for our bigoted correspondent: it appears that the people of New Jersey, through their elected representatives, are already set to pass legislation enabling civil unions for gays:

http://www.c-n.com/apps/pbcs.dll/article?AID=/20061026/FRONT01/61026017

curtisstrong

So,

Somehow it´s okay to discriminate in name only. What a strange, strange way to compromise on this issue, don´t you think? Marriage is a term that has been used for millenia, and it´s not just going to disappear from the public lexicon.

The suggestion to strip the term marriage from government and call everything civil unions, or to just call heteros "married" is really odd. If it´s the same thing, let´s get over ourselves, say that people can get married, regardless of sexual orientation, and if they want to get married in their respective churches, then they can get married there in accordance with their beliefs.

Why do we need to wait another 10-20 years before legislatures start wasting millions of tax dollars debating for months about whether or not to change the words "civil union" to "marriage" on the state law books?

Just call it marriage, and get this over with, so we can all move on with our happy lives.

curtisstrong

Does the word "wedding" still count, or do we need to use "civil union ceremony?"

FrankMCook

In the first week of law school, Professor Hazzard drilled into our heads the notion that the same word can mean different things in different contexts. As a strict church/state separatist, I have no trouble saying that the state has no business telling the church what marriage means but the church has no business telling the state what it means either. I recognize, however, that using the same word, marriage, to include couples of the same or different sexes is not something everyone is comfortable with. The New Jersey decision, which I haven't read, reportedly leaves the door open for civil unions. I think that's the correct approach.

We can quickly create a very long list of legal issues that affect couples - intestate succession, consent to health care, income taxation, division of property upon the termination of the relationship, adoption, and on and on - with which the system must deal whether or not a religious body regards the couple as married. Ultimately, the law is about resolving disputes and the system must cope with all the disagreements that occur between couples regardless of the term we choose to use to describe their relationship.

While I fully agree with Professor Stone's observation that attitudes have changed and will change a good deal more in coming generations, I think the proper approach for the time being is legislation that defines the steps a couple, regardless of their sexes, must take to be recognized as a couple for civil purposes. A marriage recognized by a religion could be one, but not the only route, to that status. If people take offense at combining the two types of legally recognized couples into one legal status, we can get to the same result with two concepts at the cost of having to amend a whole lot of other statutes to insert language making them apply to couples who are either married in a religious ceremony or united in a civil one. While this may have overtones of separate but equal, I think there are good first amendment reasons to reserve the term marriage for religiously sanctioned unions and to create a new term for civilly sanctioned ones even though I know that couples who are joined by a justice of the peace instead of by a member of the clergy will still call themselves married no matter what the statutes call them.

Erasmussimo

Mr. Strong, I agree that it is rather silly to replace the common-sense word 'marriage' with 'civil union'. However, remember that this is politics, not logic, and politics revolves around perceptions, not reality. There are many conservatives who have strong beliefs that marriage is a fundamental component of our culture, and that homosexuals should not be included in that tradition. I have no desire to trample upon their beliefs. If a solution can be found that meets the actual needs of gay couples without trampling upon conservative sensibilities, then I prefer it. Remember, compromise is the lifeblood of democracy. Compromise means that neither side gets everything it wants. If conservatives can swallow the notion of civil unions, then liberals should be able to swallow the failure to get the term 'marriage' applied to gay unions. And everybody lives happily ever after. ;-)

Joan A. Conway

"...should pay zero federal income tax," by Cynic: You are so lucky to have been allowed the duty to be a responsible parent, that many pulled from by destructive causes. I believe you will benefit from your luck with a family in good health. Believe me, you are very lucky inspite of coughing up money to the IRS.

Cynic

Joan, the quote is actually from "Your Conscious." I was responding to him/her.

curtisstrong

I realize that the word "marriage" could have different ramifications in general speech, legal documents, religious circles...etc. I also realize the utility for now of using "civil unions" as a compromise term until society is ready to recognize all marriages as marriages.

What I´m arguing is that a use of different terms is going to lead to more problems and more accusations of discrimination for the simple reason that different terms are used for something that is legally indistinguishable. Hence, in the future, New Jersey (and other states), is going to have to return to this issue and waste time fighting about semantics. I simply find that to be inefficient, wasteful, and therefore, unwise.

I say, let religions call it what they want, and use one (whether "marriage" or "civil union") term in legal documents of the state.

Roach

How generous of the courts! They decide what the substance of the law is and we get to pick the names. Thank you.

Seriously, the Constitution is supposed to transmit the long-run and considered will of the people. This concept of distilling the majority through different filters--electoral college, indirect election of senators, staggered elections--is designed to prevent spasms of passion from overwhelming the real judgment of the society.

It's not designed to permanently thwart their will and likely cannot for any great length of time. The system is certainly not designed so that 10,000 year old cultural institutions like marriage can be eliminated by judicial fiat. An independent judiciary prevents a run-amuck majority from passing a statute that violates some principle that the majority has committed to earlier, i.e., First Amendment protections.

I know it's hard for some of you liberals to believe those Dead White Males of the Founding could be so even-handed and fair, but that's what they did. They did not, however, set up a system where open-ended principles--equal protection, privileges and immunities, or due process of law--could be employed to allow any kind of judicial trump on legislation or judicial imposition of new legislation, such as the creation of gay civil unions.

There's a difference between pre-commitment to fairness and limited government and pre-commitment to revolutionary change imposed by judges acting self-conciously against the expressed will of the majority.

The gay rights decisions, the school bussing decisions, the school prayer decisions, the abortion decisions, and the like are all part and parcel of this social engineering concept of jurisprudence that literally knows no limits, shows no respect for the majority, shows no respect for tradition, and shows no humility whatsoever. Emboldened by legal realism, they lack the most essential character to be a good judge: a very deliberate sense of awe and restraint and regard for the law as a system.

But hey at least they throw us a bone one time. Maybe some day they'll let legislatures call abortion baby-murder and issue baby-murdering licenses to abortionists. Now *that's* democracy!

Erasmussimo

Mr. Roach writes, "imposed by judges acting self-conciously against the expressed will of the majority."

I believe you assume too much, Mr. Roach. A Zogby poll in February (you can find it here: http://www.freedomtomarry.org/document.asp?id=5003 )
found that 56% of New Jersey voters answered 'yes' to the question, "Do you agree or disagree that gay couples should have the same freedom as heterosexual couples to marry?" 39% answered 'no'. It appears, then that the New Jersey Supreme Court actually fell short of the popular will in failing to grant full freedom to marry, stopping short at civil unions. So, if you are a true believer in democracy, Mr. Roach, you will surely applaud this move.

Also, the New Jersey state legislature has already begun work on a bill to legalize civil unions between gays. Support for the bill is strong; its backers are confident of passage. Thus, not only do the people of New Jersey support civil unions for gays, but also their elected representatives.

You decried the lack of respect for the majority. Now that you know the true opinion of the majority of voters in New Jersey, do you respect it?

Roach

Not really. I think they're wrong. And I favor a federal amendment banning so-called gay marriage.

That said, I think the right way for public opinion to be expressed on this and similar issues is through the democratic process, either directly in referenda or through their representatives. If it's true that New Jersey's citizens really favor this radical innovation, then why should the courts be involved at all in this issue, applying vague equal protection principles that could just as easily legalize polygamy or child-adult relationships--after all, aren't all these distinctions arbitrary and irrational and merely conventions?

curtisstrong

Roach writes:

"The system is certainly not designed so that 10,000 year old cultural institutions like marriage can be eliminated by judicial fiat. An independent judiciary prevents a run-amuck majority from passing a statute that violates some principle that the majority has committed to earlier, i.e., First Amendment protections."

First of all..the marriage institution has not been "eliminated" in any sense. Rather, it has been expanded upon purely in a political context. Roach is not forced to accept homosexual marriages in his religion, nor is he forced to become a homosexual, nor is he now prohibited from marrying a woman.

Second, if the people of the state of New Jersey are unhappy about the decision they have various options open to their disposal and they can decide how to deal with this particular situation. They can vote for representatives to change the state Constitution, they can appoint representatives who will eventually appoint more strict-constructionist judges, they could protest, use their first amendment privileges to convince others to rally to their point of view...etc.

Roach clearly disagrees with the courts´ 7-0 reasoning and has also shown antipathy toward the people´s views regarding this issue. He also refuses to realize that the underying assumptions upon which a legal document is based often changes. This happens with laws, contracts, constitutions...etc. Practices and applications change over time, and therefore the text comes to mean different things. If a judiciary makes a determination, then it is left to the electorate to decide the wisdom of that decision. This is what will happen in New Jersey, and life will go on.

Erasmussimo

Very well, Mr. Roach, you assert that you do not respect the will of the people of New Jersey. You would like to impose your own values upon them. You disdain the democratic process. Very well -- at least you have shown your true colors.

Roach

You jump to conclusions, sir. First of all, I am not an advocate of naked majoritarianism. I am an advocate of majoritarianism when it's opposed by an activist judiciary. Between the two, majoritarianism is preferable. But if my true colors are to impose values through advocacy and even through a constitutional amendment if necessary, then I'm guilty as charged.

Second, when one majority at one level of government opposes a majority at another level of government, then it's not so clear which is the majoritarian, pro-democracy position. Is it anti-democracy for the federal government to impose gun control laws? Employment discrimination laws? Minimum wage laws that apply to state governments?

Why is the political community of "New Jersey" more relevant than the "United States" when a fundamental social institution with national importance like marriage is at stake? I think there are good arguments for a uniform standard on these things, just as I believe we should not have "popular sovereignty" on issues like slavery or the requirements of a republican form of government at the state level.

My true colors, incidentally, are extremely conservative, opposed to re-engineering fundamental social institutions because of passing fads like gay rights, and hostile to a leftist judicial activism that ignores the good sense of people, including the good sense of their ancestors who bequeathed certain time-tested institutions like heterosexual marriage. What is disdaingful of the democratic process is the attempt to speed it along through judicial fiat, in effect shifting the burden of proof to those who simply wan't to keep things the way they've always been.

I'll quote my earlier writings on this so you can get the full flavor of my "true colors":

"One of the more interesting rhetorical tropes in favor of gay marriage has been the suggestion that conservatives are hypocrites for supporting a constitutional amendment banning gay marriage. Conservatives, of course, generally support federalism and the diversity of practice among states. Different conditions prevail in different places. Experimentation may yield better solutions. The relative ease of movement among states prevents the practices of any one state from becoming too oppressive. That said, there are numerous limits on state government, both in the original Constitution and from subsequent amendments. States must have "republican forms of government." They cannot mint fiat currencies. They cannot permit slavery. They cannot issue letters of marque and reprisal. They cannot have their own idiosyncratic interpretations of the federal Constitution.

"Federalism is an important means to secure good government. And good government is a means to secure the conditions necessary for people to live decent and moral lives. But federalism is not sacred, nor is it an end in itself. Decent societies have existed without federalism and without popular government. Decent societies in accord with the Christian understanding of morality have not long existed with polygamy, sexual license, or the hitherto unknown "human right" to have gay marriage. If, through the Procrustean and hubristic philosophy known as legal realism state courts undermine the foundational institution of Western Civilization--that being monogamous, legally-protected heterosexual marriage--it is perfectly appropriate to create uniform, national laws to stop the rot and solidify social consensus.

"The fact that conservatives want to accomplish this goal through a constitutional amendment shows respect for the Constitution, unlike the voluminous legislation the Congress promulgates with little regard to federalism and enumerated powers."

P.S. Take a chill pill. Like you libs always say, gays have always been around. They'll be around if they have to stay in the closet and refrain from making a mockery of marriage.

Erasmussimo

Very well, your position on this is that the Federal government should make the determination on gay marriage, not the state governments. On what basis do you make this claim? The issuing of marriage licenses has always been a local matter. Do you take this long legal tradition so lightly as to overturn it for a single issue? Is it your policy that the Federal government can intrude into state policy at any and all levels?

Moreover, I wonder how consistent you are in your beliefs. Let us suppose that the Federal government determines that gays have a legal right to get married, overruling state governments. Would you support this intrusion as readily as you now support such an intrusion in the opposite direction?

I could understand your discriminating between court decisions and a Constitutional amendment. So let us imagine four cases:

1. The Supreme Court declares that gays have a right to marry, overruling state laws.

2. The Supreme Court declares that gays have no right to marry, overruling state laws.

3. An amendment to Constitution is passed, declaring that gays have a right to marry.

4. An amendment to the Constitution is passed, declaring that gays have no right to marry.

Which of these four imaginary scenarios would you respect? I myself would respect all four. Would you?

Next, I'd like to question your wild claim about "the foundational institution of Western Civilization--that being monogamous, legally-protected heterosexual marriage"

There's no historical basis for such a claim whatsoever. Yes, heterosexual marriage has a long history. Yes, there have always been inheritance laws, and they generally rely on assumptions that marriage is heterosexual. But your suggestion that this is somehow the heritage of Western civilization flies in the face of what we know about classical civilization. Homosexual behavior has a long history as well -- some research indicates that it has been with us since before the evolution of the hominine line. Indeed, it is likely that homosexual behavior predates the social institution of marriage.

Moreover, your comments about "decent societies" suggests that you believe that there are "indecent societies". Would you care to list a few of these "indecent societies"? Be warned: you'd better be prepared to back up such claims. I think you'll find the sociological research quite lacking in evidence to support your thesis.

Roach

"Is it your policy that the Federal government can intrude into state policy at any and all levels?"

Yes, if it does so through an amendment. How could it be otherwise? Such actions may frequently be unwise and imprudent, but a constitutional amendment is law, is it not? Incidentally, my position is not that the feds should generally make this type of policy. This is an undesirable but necessary turn of events. My position is that this unfortunate requirement may be necessary because of the actions of activist state courts and their misreading of their state constitutions, coupled with their legal realist philosophy, which shows no respect for the inherent limits imposed by the language of statutes and constitutions, nor the underlying princples of natural justice those positive laws are supposed to embody. Federalism is an instrumental good that should serve broader policies (such as justice, social order, and morality) and should be abrogated when states enact extreme and anti-social policies.

As for the four scenarios, I would say 1 and 2 I would not respect because the Constitution is silent on the matter. Such an action by a court at any level, under a state or federal constitution, would be a usurpation, an act of violence masquerading as law. The state can no more invent "gay marriage" than it can un-invent a person's humanity by designating him a slave. Both policies disregard natural law, the unwritten principles derived from nature itself and discernable using human reason. In my eyes, and the eyes of most people, homosexual marriage will never be morally legitimate.

As for 3 and 4, I'd respect those policies as legal, though I think number 3 would be a bad policy that I'd oppose on the merits for the natural law reasons I state above.

As for indecent societies, oh, I don't know, how about pagan Rome with its notorious intrusions on matters of conscience and its degrading exhibitions of violence for public consumption. Or how about communist societies that actively and purposefully intruded upon basic social institutions like the family and private property in order to foment social revolution and consolidate power in the state.

You are probably right that homosexuality has been around a long time and even predates marriage. That's partly my point; man transcends his animal nature and becomes fully human only in a society with rules. And that society attains justice and elevates humanity only insofar as its rules are in accordance with the natural law, and the specific natural law as regards human sexuality. One cannot condemn or support gay marriage without some notion of the purpose of socially-sanctioned sexual life; I think that purpose is chiefly to beget children, but also to channel men and women into stable relationships that respect both parties' dignity and the needs of any children that result. Homsexuality has not been institutionalized as an acceptable, socially sanctioned way of life, protected by law, in any civilization of note until recently. I think the reason is that even societies with only worldly concerns--power, stability, longevity--know that loosening the sexual passions from all restraints, allowing people to screw whomever they want whenever they want in whatever way they want spirals out of control, leading to individual and collective unhappiness, the loss of self control, uncared for children, and a decadent sexuality that beomes completely unmoored form reproduction and replacement birth levels, as we've seen recently in Europe. (In this respect, reproductive "freedom," looser divorce laws, and gay marriage are all part and parcel of the same sexual revolution.)

Your final challenge about "decent societies" begs the question. Do you believe there is such a thing? I think decent societies acknowledge certain limits on positive law based on natural law and the requirements of social life; the laws of a decent society make living a moral life easier for individuals, through a combination of incentives and penalties.

Institutionalized homosexuality is a decadent concept that aims to separate sexuality from marriage and procreation under the rubric of "liberation." I find this indecent and unsustainable. I find the whole so-called sexual revolution to have led to a host of troubles: bastardization, lower rates of reproduction, explosive rates of STDs, depression and sexual dysfunction, troubled relationships, and the sexual abuse of children and women.

It is notable that a certain sexual license characterized the illiberal and unstable era of the late Roman empires and the latter days of Ancient Greek city-states as well. I believe this false freedom to do at all times whatever one wants, sexually or otherwise, is the sign of a civilization that has lost its way and is in decline.

The first requirement of social life is teaching people to control their passions to secure the common good. All societies knew that such habits had to be mastered in all areas, particularly in the volatile arena of sexuality, or the ethic of hedonism would intrude into all areas. One would think the deadly AIDS epidemic might give those that want to further homosexualize our culture some pause, but I guess it will take something more dramatic, like us being eclipsed by another more disciplined people that are not living in fantasy-land as regards the need to channel sexual life into the only viable and healthy direction, monogamous heterosexual marriage.

For gay rights activists, marriage is all about individual self actualization. But this conceit ignores that marriage is uniquely and fundamentally social; it is a status with privileges that function as an incentive to marry and a disenctive to screw with abandon; it is not just a random contract between two people, to be broken at will. We've lost sight of this with our lax divorce laws and collective addiction to contraception and abortion, but we'll learn (and we are learning) the hard way that if marriage comes to mean whatever any two (or more!) people want it to mean, the social purposes originally conceived by marriage will not be met. Children will not be raised in a stable way, and the various alternatives to monogomous married life, including homosexuality, will provide alluring options requiring less commitment making existing marriages harder to sustain. Or have you not heard of the all-too-common situation of men leaving their wives in middle age for younger women, men being unavailable for marriage altogether, or even, as in the case of the former NJ governor, men leaving their wives for other men?

curtisstrong

Roach´s arguments here are largely inoperative.

"Screw with abandon" doesn´t and shouldn´t enter into the equation of a judicial decision that is focused around "marriage." This isn´t a judicial decision about "screw whoever you want." It isn´t a judicial decision about infidelity. It isn´t a judicial decision about reckless abandon...etc.

I agree with Roach that the government has an important interest in keeping family structures together, and discouraging promiscuity and all of the other social ills that he brings up. Homosexual marriages will not bring about all of the evils Roach warns of.

Rather, promiscuity, irresponsibility, lack of education, lack of opportunities and a lack of a support system all weigh into those issues. Homosexual marriage, if anything, could help with these problems by providing homes for children through adoption who would otherwise be without a family/support system.

I do agree that fidelity and responsibility should be a strong government focus, but this is hardly a problem that is limited to homosexuality.

curtisstrong

By the way,

Those who keep up eon this blog will remember that I have taken issue with Roach´s strict-constructionist paradigm on many varying occasions.

He has never responded...and I continue to wait.

F.

Mr. Golddog

There is no treatment to transform people to any other race. Your counter-factual analysis
is a fallacy. You can not make hypothesis of problems which have not relevance to actual cases. And the idea that there is path of "liberal" chain of events and "gayism" understood as a progress to acceptance is stupidity. and you seem to forget the consequences of racism ( slavery and a civil war with 750 000 deads).A similar analogy , arguing for it is nonsense.
And you did not answer my query about polygamy and polyandry ? Is it acceptable just because 4 out of 7 judges may decide it ?
If courts are always right was Dred Scott decison right in 1857 stating that blacks had no rights for white men to respect ?
You call it courts natural function, I call it judicial usurpation !
Don't forget rightful majoritanism is only acceptable when people decide it in legislatures which WERE ELECTED.
Was Jefferson before is 1800 election right to appeal to the right of revolution because of usurpations by the federalists ?
Was Lincoln right arguing against Dred Scott decision of the Supreme Court in 1859 campaign?
Democrats may answer no now ! But their answer in their convention was yes !

Yours truly

F.

Roach

As for your "taking issue with Roach's strict-constructionist paradigm," I don't know what your specific question or objection is.

If it's something like this, "He also refuses to realize that the underying assumptions upon which a legal document is based often changes. This happens with laws, contracts, constitutions...etc. Practices and applications change over time, and therefore the text comes to mean different things" then I respond that the law is a text that has (or can be given) an objective meaning at the time it's written, in the same manner as the law imputes a meaning to a contract. (I disagree with your view that contracts "change over time" with changing usages, and I have litigated literally dozens of complicated contract disputes.)

It's especially imporatant to have some kind of legally constructed objective meaning when multiple parties approach a document with multiple agendas. I think it would be inappropriate to have courts impose changes on otherwise settled law because of evolution in the language and usage outside the law. Such changes would be all too murky and lacking in transparency or, at the very least, unpredictable; nothing could limit the power of the courts, whereas certain stylized readings of language, known in advance to legislatures (and their drafting lawyers) under the rubric of canons of construction, at least inform democratic representatives of the scope of possible variation in judicial interpretations of legislation--whether they choose to take heed is another matter.

It's doubly important that this kind of "evolving legal languge" view not take place in the Constitution, where the Court effectively has the final say. This is why the rule against finding a Constitutional issue is sensible, among others, as is any rule that defers to elected branches or finds some other way to avoid undoing a democratic enactment, particularly at the state level where governments are supposed to have a "police power" over "health, safety, welfare, and morals."

My beef with living constitutionalism is that it is an empty vessel, it unduly expands the power of the courts, and it disrespects people whose law's have intended meanings at the time they're written that should respected until they're deliberately and knowingly changed in much the same manner, through a legislature. What's unfair and unjust is changing the presumption of the law's continued application and then putting the burden of proof and the requirement of lobbying/organizing/passing a law etc. on those that simply want to keep things they way they are and have been. It should be the other way around. Law, after all, is an inter-generataional conversation of sorts, and its effectiveness depends in part for widespread respect for the law in its settled condition and for the legitimacy of this "dead hand" control. After all, if we don't respect the law because some legislature in time immemorial created it, why respect the Constitution which none of us voted upon?

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